The Transformative Nature of the 14th Amendment

What I affirm is that no state.. nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can.. discriminate against freemen or citizens.” Justice John Marshal Harlan’s dissent in Civil Rights Cases (1883). Photo Credit: Wikipedia

When I look at the Reconstruction Era–particularly the period from 1865 to 1870–I see a time of deep reflection about how and why the U.S. Constitution needed to be significantly changed in the wake of the Civil War. As historian David Blight argues, the Reconstruction Era was a “twelve-year referendum on the meaning of the Civil War,” a time in which remarkable changes in basic ideas of citizenship, political equality, freedom, and the very definition of what it means to successfully achieve life, liberty, and the pursuit of happiness transformed the United States. I also subscribe to Blight’s thesis that the Constitution before the Civil War was America’s “Old Testament” and that the Constitution since the war is our “New Testament.” Indeed, we today don’t live under the Constitution as it was written before the war, with legal protections for slavery, no clear definition of U.S. citizenship, and voting rights determined by the states largely on the basis of class, property, and skin color (and, of course, gender).

The 14th amendment (1868) is particularly noteworthy for its sweeping changes to America’s legal boundaries. The amendment defines citizenship as a birthright or through a naturalization process, puts a check of the power of states to deny the right of “life, liberty, or property, without due process of law,” and demands that all citizens be given the equal protection of the laws (no more laws like Missouri’s 1847 law banning blacks from learning how to read or write, whether they were free or enslaved). It also broadens the power of Congress by giving them the power to pass legislation to enforce this amendment. The equal protection clause continues to be a point of contention in legal practice, with the Library of Congress stating that the 14th amendment “is cited in more litigation than any other amendment,” from legislation regulating religious practices in schools to gay marriage and much else. Regardless, the 14th amendment more explicitly and specifically explains that achieving political equality among U.S. citizens is a goal of the federal government.

Without diving too much into contemporary politics, I sometimes wonder if the ideals of political equality stated in the 14th amendment are either taken for granted or openly scorned by some Americans today. For example, former Presidential candidate Ron Paul’s 2008 and 2012 platforms were based partly on the idea of abolishing the 14th amendment, and columnist George Will, citing an inaccurate law review article, argued in 2010 that birthright citizenship can and should be abolished from the constitution. And what about all of the recent flighty rhetoric about “getting back to our constitutional roots,” “Make America Great Again,” or the popular impulse (at least on social media) to proclaim oneself a “constitutionalist?” Is this rhetoric calling for a return of American governance and liberty based on the pre-Civil War, “Old Testament” constitution? I would venture to guess that the answer differs based on who you’re talking to. But I can’t help but question what, exactly, this rhetoric purports to reclaim from American history. What are we trying to get back to?

Cheers

Addendum: To be sure, the 14th amendment has its shortcomings and has sometimes been defined by the Supreme Court in a very narrow fashion. In Civil Rights Cases (1883) seven of the eight justices argued that the 14th amendment only applied to state actions and not the actions of individuals and private groups. In other words, it prevented racial discrimination by the state, but not racial discrimination by private individuals, business owners, and groups like the Ku Klux Klan. Additionally, Plessy v. Ferguson (1896), which argued that racial segregation in public facilities was legal, was justified on the basis of the 14th amendment, claiming that such segregation was legal provided that the facilities were “equal.” Moreover, the amendment did not ensure voting rights to blacks because there were fears among the Republican Party that Northern whites would reject the amendment (numerous Northern states had already rejected state referendums on the question after the Civil War), and it did not provide citizenship to Native American Indians throughout the country. It was also the first time the word “male” was inserted into the Constitution, much to the anger of Suffragists who promoted women’s rights and suffrage qualifications. Check out the National Constitution Center’s resources on the 14th amendment to learn more.

2 thoughts on “The Transformative Nature of the 14th Amendment”

I agree with you that many Americans are either ignorant of the 14th Amendment’s protections or openly disdain them. This Amendment may be the amendment most cited by the courts over the last 60 years, but too many Americans seem unaware of its origins and impacts. Last year I took on the task of helping Long Islanders learn about the 14th Amendment, giving lectures, writing an op-ed for Newsday, and writing a four-part series on the 14th Amendment and Immigrants:http://www.longislandwins.com/columns/detail/immigrants_and_the_14th_amendment

The 14th Amendment is under attack by people like Donald Trump. I thought that it was a remarkable moment when Mr. Kahn held up his copy of the Constitution at the Democratic National Convention and urged Trump to read the 14th Amendment. Hopefully many other Americans will follow his lead.

Just as a note: The absence of voting rights in the 14th Amendment was not only due to Northern restrictions on black voting. Several Northern states had also tried to restrict the voting rights of immigrants who had become citizens, and this was a factor as well.